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IN THE HIGH COURT AT CALCUTTA
Tarun Chatterjee, J.
Smt. Pranati Biswas - Petitioner
Versus
Mantu Kumar Lal - Opposite Party
C.O. No. 1537 of 1998
Decided On : January 17, 2000
WEST BENGAL LAND REFORMS ACT, 1955 - SECTIONS 8, 61 - PRE-EMPTION - APPLICATION FOR PRE-EMPTION - REGISTRATION OF SALE DEED NOT COMPLETED - MAINTAINABILITY OF APPLICATION - POWER OF COURT TO MOULD RELIEF UNDER ORDER 7 RULE 7 OF THE CODE OF CIVIL PROCEDURE.
Fact of the Case:
The petitioner, a pre-emptor, filed an application under Section 8 of the West Bengal Land Reforms Act, 1955, claiming pre-emption of a property on the grounds of being a contiguous owner and longest boundary holder. The pre-emptee/opposite party contested the application, arguing that it was premature as the registration of the sale deed was not completed. The trial court rejected the pre-emptee's application and granted a stay of the pre-emption application till completion of registration. The revisional court allowed the pre-emptee's revisional application and rejected the pre-emption application on the ground that it was premature.
Finding of the Court:
The court held that the application for pre-emption could not be rejected at the initial stage merely because the registration of the sale deed was not completed on the date of filing the application. The court relied on the decision of the Division Bench of this Court in Krishna Chandra Pramanick & Ors. v. Harisadhan Sahana, AIR 1981 Calcutta 435, which held that even if the right to pre-empt had not matured on the date of commencement of the proceeding, the court could proceed with the application and allow parties to lead evidence on merits. The court further held that the pre-emptee could not be prejudiced by this order as he could make a fresh application for pre-emption under Section 8 of the Act once the registration of the deed was completed.
Issues: 1. Whether an application for pre-emption can be rejected at the initial stage merely because the registration of the sale deed was not completed on the date of filing the application. 2. Whether the court has the power to mould relief under Order 7 Rule 7 of the Code of Civil Procedure, even though registration of the sale deed is not completed under Section 61 of the Registration Act.
Ratio Decidendi: The court held that the application for pre-emption could not be rejected at the initial stage merely because the registration of the sale deed was not completed on the date of filing the application. The court relied on the decision of the Division Bench of this Court in Krishna Chandra Pramanick & Ors. v. Harisadhan Sahana, AIR 1981 Calcutta 435, which held that even if the right to pre-empt had not matured on the date of commencement of the proceeding, the court could proceed with the application and allow parties to lead evidence on merits. The court further held that the pre-emptee could not be prejudiced by this order as he could make a fresh application for pre-emption under Section 8 of the Act once the registration of the deed was completed.
Final Decision: The court set aside the order of the revisional court and allowed the application for pre-emption to proceed. The parties were allowed to lead evidence on all points and the court directed that the application for pre-emption would be rejected only if it was found at the time of final disposal that the registration of the sale deed still remained to be completed.
This application under Article 227 of the Constitution is directed against the judgment and order dated 27th February, 1998 passed by Sri P. N. Sen, Additional District Judge, 1st Court at Bankura in Civil Revision Case No. 19 of 1998 allowing a revisional application of the opposite party filed under Section 115A of the Code of Civil Procedure, whereby the judgment and order of the trial Court was set aside and the application for pre-emption was rejected. The pre-emptor is the petitioner before me He had filed the aforesaid application under Section 8 of the West Bengal Land Reforms Act, 1955 (hereinafter called as "the Act") on the ground that he was a contiguous owner of the property in question and, therefore, entitled to pre-empt the sale effected in respect of the property in question. He also claimed preemption of the property in question as a longest boundary holder.
2. This application under Section 8 of the Act was contested by the pre-emptee/opposite party in which he contended that as the registration of the sale deed was not completed the petitioner had no locus standi to file the application for pre-emption under Section 8 of the Act. During the pendency of the application under Section 8 of the Act, the petitioner filed an application praying for stay of the pre-emption application till the completion of registration of the sale deed in question. The opposite party was, however, contesting the said application by contending that the application for pre-emption must be dismissed as it was premature on the date of filing of the application. The pre-emptee/opposite party also filed a separate application praying for rejection of the pre-emption application on the aforesaid ground.
3. The trial Court heard both the interlocutory applications filed by the parties and by an order dated 17th February, 1998 rejected the application of the opposite. party for rejection of the application for pre-emption on the ground of immaturity on the date of filing the application for pre-emption and allowed the application of the petitioner for stay of the pre-emption application till completion of registration of the sale deed by holding that if an order of stay was granted, neither of the parties would be prejudiced. Challenging this order, the preemptee/opposite party moved a civil revision case being Civil Revision Case No. 19 of 1998. By the judgment and order dated 27th February, 1998, the revisional Court allowed the revisional application and reversed the order of the trial Court and rejected the application for pre-emption on the ground that the application for pre-emption was premature on the date of filing the pre-emption application. The revisional Court, while setting aside the judgment and order of the trial Court held that there was no occasion for the trial Court to pass an order of stay of the pre-emption application till completion of the registration of the sale deed in question as the pre-emptor/petitioner on the date of filing the pre-emption application had no right to file the application for pre-emption as the registration of the sale deed in question was not completed. Feeling aggrieved by this order of the revisional Court, the present petition under Article 227 of the Constitution has been moved at the instance of the pre-emptor/petitioner.
4. From the facts as stated above, it is, therefore, clear that only question that needs to be decided in this application under Article 227 of the Constitution is whether the pre-emption application can still be held to be maintainable in law as the registration of the sale deed has not yet been completed and whether the application for pre-emption can be stayed till the completion of the registration of the sale deed in question,
5. Before I proceed further, I must narrate certain admitted facts which would be required for proper disposal of the question at issue. The sale deed was entered in a book for registration on 16th December, 1990. The present application
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